Wednesday, April 16, 2008

For those opposed to the death penalty, today's vote in Baze v. Rees (2008) of 7-2, allowing lethal injection to proceed, doesn't even seem close. But after meandering through the seven different opinions, concurrences and dissents, it seems clear that while the court ruled strongly this particular case failed on its 8th amendment claim, it is nevertheless in turmoil over the death penalty itself.

From Roberts' plurality opinion:

In other words, an isolated mishap alone does not give rise to an Eighth Amendment violation, precisely because such an event, while regrettable, does not suggest cruelty, or that the procedure at issue gives rise to a “substantial risk of serious harm."

Given what our cases have said about the nature of the risk of harm that is actionable under the Eighth Amendment, a condemned prisoner cannot successfully challenge a State’s method of execution merely by showing a slightly or marginally safer alternative.

On the issue of the lack of training and protocols:

IV team must have at least one year of professional experience as a certified medical assistant, phlebotomist, EMT, paramedic, or military corpsman. Kentucky currently uses a phlebotomist and an EMT, personnel who have daily experience establishing IV catheters for inmates in Kentucky’s prison population. Moreover, these IV team members, along with the rest of the execution team, participate in at least 10 practice sessions per year.

In addition, the presence of the warden and deputy warden in the execution chamber with the prisoner allows them to watch for signs of IV problems, including infiltration.

This seems an odd aside, since a warden or deputy warden, lacking any medical training themselves, would be considered an "extra" safeguard to a botched lethal injection.

The plurality opinion also addresses the single-drug version of lethal injection which makes death penalty advocates squirm over its veterinary usage (emphasis added).

Petitioners’ barbiturate-only protocol, they contend, is not untested; it is used routinely by veterinarians in putting animals to sleep. Moreover, 23 States, including Kentucky, bar veterinarians from using a neuromuscular paralytic agent like pancuronium bromide, either expressly or, like Kentucky, by specifically directing the use of a drug like sodium pentobarbital. If pancuronium is too cruel for animals, the argument goes, then it must be too cruel for the condemned inmate. Whatever rhetorical force the argument carries, see Workman, supra, at 909 (describing the comparison to animal euthanasia as “more of a debater’s point”), it overlooks the States’ legitimate interest in providing for a quick, certain death.

That concern may be less compelling in the veterinary context, and in any event other methods approved by veterinarians—such as stunning the animal or severing its spinal cord—make clear that veterinary practice for animals is not an appropriate guide to humane practices for humans.

You can begin to see that while the majority garnered seven votes, very few agreed with Roberts' reasoning.

From Alito's concurrence:

The issue presented in this case—the constitutionality of a method of execution—should be kept separate from the controversial issue of the death penalty itself. If the Court wishes to reexamine the latter issue, it should do so directly, as JUSTICE STEVENS now suggests. The Court should not produce a de facto ban on capital punishment by adopting method-of-execution rules that lead to litigation gridlock.

I'll leave it to the law professors and court watchers to decide if Alito is actually endorsing that idea. But what he's referring to is Justice Stevens' concurrence. While Stevens votes with the seven in finding Kentucky's protocol's in concordance with the 8th amendment, he launches into an anti-death penalty diatribe, striking in its defiance of capital punishment itself, and chalk-full of 3150 references regarding justifications for the death penalty:

The thoughtful opinions written by THE CHIEF JUSTICE and by JUSTICE GINSBURG have persuaded me that current decisions by state legislatures, by the Congress of the United States, and by this Court to retain the death penalty as a part of our law are the product of habit and inattention rather than an acceptable deliberative process that weighs the costs and risks of administering that penalty against its identifiable benefits, and rest in part on a faulty assumption about the retributive force of the death penalty.

In Gregg v. Georgia, 428 U. S. 153 (1976), we explained that unless a criminal sanction serves a legitimate penological function, it constitutes “gratuitous infliction of suffering” in violation of the Eighth Amendment. We then identified three societal purposes for death as a sanction: incapacitation, deterrence, and retribution. In the past three decades, however, each of these rationales has been called into question.And the available sociological evidence suggests that juries are less likely to impose the death penalty when life without parole is available as a sentence.

The legitimacy of deterrence as an acceptable justification for the death penalty is also questionable, at best. Despite 30 years of empirical research in the area, there remains no reliable statistical evidence that capital punishment in fact deters potential offenders.13 In the absence of such evidence, deterrence cannot serve as a sufficient penological justification for this uniquely severe and irrevocable punishment.

We are left, then, with retribution as the primary rationale for imposing the death penalty. And indeed, it is the retribution rationale that animates much of the remaining enthusiasm for the death penalty.

In an attempt to bring executions in line with our evolving standards of decency, we have adopted increasingly less painful methods of execution, and then declared previous methods barbaric and archaic. But by requiring that an execution be relatively painless, we necessarily protect the inmate from enduring any punishment that is comparable to the suffering inflicted on his victim. This trend, while appropriate and required by the Eighth Amendment’s prohibitionon cruel and unusual punishment, actually undermines the very premise on which public approval of the retribution rationale is based.

An interesting argument: that the "eye for an eye" justification fails because we've made the death penalty too humane and therefore not a measure of retributive justice.

Justice Stevens writes, “I have relied on my own experience in reaching the conclusion that the imposition of the death penalty” is unconstitutional. Ante, at 17 (emphasis added).

Purer expression cannot be found of the principle of rule by judicial fiat. In the face of JUSTICE STEVENS’ experience, the experience of all others is, it appears, of little consequence. The experience of the state legislatures and the Congress—who retain the death penalty as a form of punishment—is dismissed as “the product of habit and inattention rather than an acceptable deliberative process.” Ante, at 8. The experience of social scientists whose studies indicate that the death penalty deters crime is relegated to a footnote. Ante, at 10, n. 13. The experience of fellow citizens who support the death penalty is described, with only the most thinly veiled condemnation, as stemming from a “thirst for vengeance.” Ante, at 11. It is JUSTICE STEVENS’ experience that reigns over all.

Touchy, touchy.

From Thomas' concurrence:

It is not a little ironic—and telling—that lethal injection, hailed just a few years ago as the humane alternative in light of which every other method of execution was deemed an unconstitutional relic of the past, is the subject of today’s challenge. It appears the Constitution is “evolving” even faster than I suspected. And it is obvious that, for some who oppose capital punishment on policy grounds, the only acceptable end point of the evolution is for this Court, in an exercise of raw judicial power unsupported by the text or history of the Constitution, or evenby a contemporary moral consensus, to strike down the death penalty as cruel and unusual in all circumstances.

From Breyer's concurrence:

I believe that the legal merits of the kind of claim presented must inevitably turn not so much upon the wording of an intermediate standard of review as upon facts and evidence. And I cannot find, either in the record in this case or in the literature on the subject, sufficient evidence that Kentucky’s execution method poses the “significant and unnecessary risk of inflicting severe pain” that petitioners assert.

And petitioners’ proof and evidence, while giving rise to legitimate concern, do not show that Kentucky’s method of applying the death penalty amounts to “cruel and unusual punishmen[t].”

From Ginsberg's dissent (joined by Souter):

Lethal injection as a mode of execution can be expected, in most instances, to result in painless death. Rare though errors may be, the consequences of a mistake about the condemned inmate’s consciousness are horrendous and effectively undetectable after injection of the second drug. Given the opposing tugs of the degree of risk and magnitude of pain, the critical question here, as I see it, is whether a feasible alternative exists. Proof of “a slightly or marginally safer alternative” is, as the plurality notes, insufficient. Ante, at 12. But if readily available measures can materially increase the likelihood that the protocol will cause no pain, a State fails to adhere to contemporary standards of decency if it declines to employ those measures.

In the end, the decision seems to be as arbitrary and random as the death penalty itself. While a clear majority feel Baze et al failed to make their 8th amendment claim, we seem to be nowhere near a court-wide consensus on lethal injection protocols, nor even close to agreeing on whether or not the death penalty itself is constitutional.

For 3150 students, I would definitely scroll through the opinion when you get a chance. Everything from Trop, Helling and Furman to Gregg, Estelle and the Farmer cases get thrown around, and all cases you need to know for the final.

But as of today, executions are "back on" in the U.S. I would expect to see a flurry of them over the next few months.

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